Rule 45.04 - Duties in Responding to Subpoena(a) Form of Production; Participation of Other Parties; Rescheduling.(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.(2) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.(3) A person responding to a subpoena need not produce the same electronically stored information in more than one form.(4) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26.02(b)(3). The court may specify conditions for the discovery.(5) The party issuing a subpoena for production or inspection shall make available to all parties any books, papers, documents or electronically stored information obtained from any person following issuance of a subpoena to that person. If production or inspection is made at a time or place, in a manner, or to an extent and scope, different from that commanded in the subpoena, the party issuing the subpoena must give notice to all parties to the action at least 7 days in advance of the rescheduled production. Any party may attend and participate in any noticed or rescheduled production or inspection and may also require production or inspection within the scope of the subpoena for inspection or copying.(b) Claims of Privilege.(1) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.(2) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.(3) For depositions taken in Minnesota under Rule 45.06 in connection with litigation pending in another jurisdiction, the procedure for assertion of claims of privilege is governed by Rule 45.04(b). The law of privilege, or other questions of substantive law, to be applied in such a deposition, depends on the application of Minnesota's conflict-of-law principles.Amended effective 7/1/2010; amended effective 7/1/2021.Advisory Committee Comment-2021 Amendments
Rule 45.04 is amended to clarify the application of privilege law in depositions taken under Rule 45.06 for depositions taken for litigation pending in a jurisdiction outside of Minnesota. The procedure for obtaining or issuance of a subpoena under Rule 45.06 is governed by Minnesota law, but the rule is amended to make it clear that in situations involving a conflict of substantive law, such as whether a question is governed by a recognized privilege, resolution depends on the application of Minnesota's conflict-of-law principles. This analysis might, in some cases, require the application of another jurisdiction's substantive law. See, e.g., Milkovich v. Saari, 295 Minn. 155, 161-71, 203 N.W.2d 408, 414-17 (1973); see generally William B. Danforth, Developments in the Minnesota Law of Conflict of Laws, 8 Wm. Mitchell L. Rev. 785 (1982).
Rule 45.06 itself is amended to provide for the issuance of a subpoena by a Minnesota attorney of record in a case, obviating issuance of the subpoena by the court administrator. This procedure is already allowed for subpoenas in cases pending in Minnesota state courts. The rule does not modify in any way the requirements for issuance of a subpoena; it merely allows a Minnesota attorney to sign and issue it if those requirements are met.